Mice, roaches in prison cells may be unconstitutional: court

(Reuters) - A prominent federal judge said on Thursday that the infestation of a prison cell with mice and cockroaches may violate the U.S. constitutional protection against cruel and unusual punishment, even if the inmate is not physically harmed.

Writing for a panel of the 7th U.S. Circuit Court of Appeals in Chicago, Circuit Judge Richard Posner nonetheless said an inmate who objected to such conditions in his Illinois state prison cell could not recover damages because the state did not waive its immunity from suit.

The case was brought by Calvin Thomas, who according to Illinois records is serving a 7-year prison term for burglary.

Thomas, 51, claimed he was forced to endure unhealthy conditions in his cell at the Vienna Correction Center because it had been infested by pests, and because rainwater came through a missing window pane.

U.S. District Judge G. Patrick Murphy in East St. Louis, Illinois dismissed the lawsuit, saying the state did not waive immunity and that Thomas failed to allege any harm.

While the three-judge appeals court panel agreed with the first reason, it said Murphy appeared to wrongly assume that "creation of a mere hazard to health" could never result in an violation of the Eighth Amendment to the U.S. Constitution.

Posner said "heavy, protracted infestation" could justify damages even if a prisoner escaped disease or distress, and that it is "pretty obvious" that living in a small cell infested with mice and cockroaches could cause psychological harm.

Depending on the nature and risks of the infestation and a prisoner's known psychological sensitivities, "a trier of fact might reasonably conclude that the prisoner had been subjected to harm sufficient to support a claim of cruel and unusual punishment even if he had not contracted a disease or suffered any physical pain," Posner wrote.

The Illinois Department of Corrections did not immediately respond to requests for comment on the decision, or to make Thomas available for comment.

Seventh Circuit decisions apply in Illinois, Indiana and Wisconsin, but other courts may cite them as authority.